State v. Amos

• Decision Date: 27 April 1984
• Docket Number: No. C5-83-297,C5-83-297
• Citation: 347 N.W.2d 498
• Parties: STATE of Minnesota, Respondent, v. Donald R. AMOS, Appellant.
• Court: Minnesota Supreme Court

Page 498

347 N.W.2d 498

STATE of Minnesota, Respondent, v. Donald R. AMOS, Appellant.

No. C5-83-297.

Supreme Court of Minnesota.

April 27, 1984.

Syllabus by the Court

1. The evidence sustains the jury's finding of intentional and premeditated murder.

2. Declaring an 8-year-old witness competent to testify was not outside a proper exercise of the trial court's discretion, nor was the admission of testimony corroborative of the child's testimony. Nor did the trial court err in excluding other testimony as lacking sufficient probative value.

3. The trial court's admission of prior convictions for impeachment was not improper, nor was it incumbent on the trial court, in the absence of a request, to give a cautionary instruction with respect to the prior convictions.

4. There was no evidence of racial discrimination in selection of the jury.

5. Failure to instruct on first-degree manslaughter was not error, nor was defendant denied a fair trial and a proper defense by any inadequacy in his trial counsel's representation.

C. Paul Jones, Public Defender, Mary E. Steenson, Asst. Public Defender, Minneapolis, for appellant.

Hubert H. Humphrey, III, Atty. Gen., St. Paul, Thomas L. Johnson, Hennepin County Atty., Vernon E. Bergstrom, Chief Appellate Section, Richard Osborne, J. Michael Richardson, Asst. County Attys., Beverly J. Wolfe, Staff Atty., Minneapolis, for respondent.

Considered and decided by the court en banc without oral argument.

SIMONETT, Justice.

Defendant appeals his conviction for first-degree murder, claiming that premeditation is lacking as a matter of law and that various trial errors require a new trial or at least that the conviction should be reduced to second-degree murder. We affirm.

On August 7, 1982, at about 6 p.m., defendant Donald R. Amos shot and killed John Coles at the intersection of Eighth Street and Emerson Avenue North in Minneapolis. The victim, Coles, driving his automobile southbound on Emerson, had stopped for the stop sign at the intersection with Eighth Street. Defendant Amos, riding as passenger in a car traveling northbound on Emerson, had also come to a stop at the Eighth Street intersection. Thus the two cars were stopped on Emerson, facing each other across Eighth Street. Defendant Amos got out of his car with a .22 revolver in hand, ran diagonally across the intersection to the driver's side of Coles' car, and fired a shot that struck Coles in the chest. The bullet, fired from a range of 1 to 2 feet, perforated the lungs and heart, killing Coles. The cylinder fell off the revolver into the Coles car. Two passengers in the Coles car claim they heard the gun click after the first shot but defendant denies he attempted a second shot.

At trial defendant Amos argued that he fired at Coles in self-defense or at least under the heat of passion, and he denied any premeditation or intent to kill. There was evidence that earlier in the afternoon Amos and Coles had an argument, then an altercation, and Coles threatened to shoot Amos the next time he saw him. Amos who retreated from the altercation, admits he felt "humiliated" by the incident. Amos testified he then borrowed a gun to protect himself until Coles, who was apparently high on alcohol and drugs, settled down. It was 1 to 3 hours after the fight that Amos and Coles met again at the intersection, each in his respective car, facing one another across Eighth Street. Amos testified he and Coles made eye contact across the intersection and that Coles bent down as if to get something from under his car seat. Thinking Coles was reaching for a gun, Amos grabbed the revolver and ran across the intersection and fired the shot that killed Coles. Amos left the scene, but shortly after hearing of Coles' death he surrendered to the police.

1. On appeal defendant Amos argues that as a matter of law the evidence was insufficient to show intentional and premeditated murder under Minn.Stat. Sec. 609.185(1) (1982). He claims if he had intended to kill Coles he would have aimed for the head but instead he aimed for the shoulder and, because Coles moved at the last moment, the bullet struck the chest. By his own admission, however, Amos had deliberately armed himself and he ran across the street to shoot Coles from a range of 2 feet. These facts are sufficient to establish both the necessary intent for the crime and premeditation. See State v. Neumann, 262 N.W.2d 426, 430-31 (Minn.1978); State v. Campbell, 281 Minn. 1, 161 N.W.2d 47 (1968). Regardless of the fighting that went on earlier in the day, defendant Amos was clearly the aggressor in what happened at the intersection and the jury was amply justified in rejecting the claim of self-defense.

2. Appellant Amos claims it was error for the trial court to allow the testimony of the victim's 8-year-old child, who was sitting in the back seat of his father's car, behind his father, and witnessed the shooting. Except for children testifying in criminal sexual abuse cases, " * * * children under ten years of age, who appear incapable of receiving just impressions of the facts respecting which they are examined, or of relating them truly, are not competent witnesses." Minn.Stat. Sec. 595.02(6) (1982). The determination of witness competency is left to the discretion of the trial judge. State ex rel. Dugal v. Tahash, 278 Minn. 175, 178, 153 N.W.2d 232, 234-35 (1967). Typically, the trial judge conducts a preliminary examination on two points: (1) whether the proposed witness understands the obligations of the oath, and (2) whether the witness can narrate the facts to which his or her testimony relates. Id.

Here the trial court held a preliminary chambers examination. The boy was asked what it meant to tell the truth; he seemed unable, either because of shyness or otherwise, to give an adequate answer, although after the judge permitted the boy to speak privately with the prosecutor and family members, the boy said it was not "okay" to tell a lie. Without testing the child's ability to relate the facts concerning his father's death, the trial court then declared the boy competent to testify. The boy's testimony consisted largely of one-word answers to leading questions on matters not really in dispute, but when asked if the defendant said anything while at the car, the boy responded, "Yes. * * * He wouldn't do it again." This statement was later corroborated by a police officer who testified that when he had interviewed the boy several hours after the shooting, the boy told him that defendant had said, "You'll never do it again."

It would have been better, we think, if the trial court had not allowed the child to testify. Nevertheless, we are not prepared on this record to say there was error. In his courtroom testimony, the boy was able to relate events in a general way and his testimony about what the defendant had said was in response to a nonleading question. Moreover, the witness' testimony was essentially cumulative. Although a close question, we also think the police officer's testimony was admissible as corroborative of the child's testimony. See State v. Lasley, 306 Minn. 224, 228, 236 N.W.2d 604, 607 (1975), cert. denied, 429 U.S. 1077, 97 S.Ct. 820, 50 L.Ed.2d 796 (1977).

3. Appellant Amos claims the trial court erred in excluding evidence of Amos' knowledge of victim Coles' police record and reputation for violence, as well as excluding statistics on the violent character of the neighborhood where the shooting occurred. This evidence, argues Amos, goes to whether he, as the defendant, was reasonably put in apprehension of serious bodily harm and who, in fact, was the aggressor. See State v. Matthews, 301 Minn. 133, 134, 221 N.W.2d 563, 564 (1974).

Defendant Amos wanted to testify to a conversation he had with Coles when both were in prison in which Coles described the crime for which he had been convicted. This testimony was ruled inadmissible hearsay. Amos' testimony on other acts of violence by Coles was also disallowed as...